Surgical

gaffe was just the 1st shock FLORIDA: In a North Port patient's case, a window on a state debate

By DONNA KOEHN

Published: Sunday, March 17, 2013 at 1:00 a.m.

Last Modified: Saturday, March 16, 2013 at 10:32 p.m.

Carole Valente was groggy.

Facts

GRAPHIC:

How the procedure is done. 12A

The North Port resident had just been wheeled into the recovery room at Manatee Memorial Hospital, moments after a neurosurgeon finished putting her skull back together.

Valente, 67, had trigeminal neuralgia, a pain in the head so excruciating it is nicknamed the "suicide disease" for the despair its patients suffer and their willingness to do anything to ease the agony.

This surgery was her last and best hope.

She wanted -- needed -- to float a little longer on the anesthesia that early January afternoon in 2012, but someone was putting something, a form and a pen, into her hands.

She was supposed to sign.

"They woke me up. I was in a dark cloud. I'm all drugged up," Valente told the Herald-Tribune. "I signed, and they took me back in."

According to a court filing, 15 minutes passed from the time anesthesia stopped in the operating room and the time she signed.

Only when she woke up later, Valente said, did she understand what had happened: Her neurosurgeon had operated on the wrong side of her head.

That paper she signed authorized him to go back in and try again, this time on the correct side.

It wasn't her only surprise.

She would later learn that her neurosurgeon, Philip Tally of Bradenton, had made the same mistake before, on another patient.

The first time, in 1994, Tally was fined $2,000 by the Florida Board of Medicine, the organization said.

Last month, Tally faced the board again, and was chastened by members for what he had done to Valente.

Board chairman Zachariah P. Zachariah called the event "abominable," a recording of the meeting reflected.

Although Tally could have had his license revoked, been suspended or been placed on probation, the Florida Board of Medicine again fined him, this time $7,500, and ordered him to give a lecture about wrong-site surgeries to other medical professionals.

That didn't sit well with Valente, a previously chatty and ebullient hairdresser who calls herself "a feisty, 100 percent Italian."

She resolved to sue him and the hospital, for what he'd done to her and to protect other patients from a similar fate.

"I'm frightened he's going to do it again," says Valente, who filed suit Jan. 4 in Manatee County Circuit Court. "I don't want it to happen to the next person."

For decades, patient advocates have criticized Florida's gentle treatment of erring physicians. Incidents that would get a license yanked for good in Alaska or Wyoming earn a fine and a stern "don't do it again" here.

Public Citizen, an advocacy group, studies medical boards across the country for how severely they punish physicians who make mistakes. Florida consistently ranks in the bottom 10.

Stabbing pain

Tally, of Bradenton's Neuro-Spinal Associates, declined to be interviewed for this article. But he does not deny a mistake occurred.

"As this involved a procedure at the hospital with a team, Vernon DeSear is designated as the spokesperson for all," Tally wrote in an email to the Herald-Tribune.

DeSear, vice president of Manatee Healthcare System, issued a statement: "Manatee Memorial Hospital is legally prohibited from disclosing any internal peer review investigations or actions pertaining to its medical staff."

He later added, "The hospital has investigated this matter and taken appropriate measures to guard against an incident such as this happening again."

Tally continues to have privileges at the hospital.

Valente says she tried to be an informed patient when planning for her surgery.

Like many with a diagnosis, no family in town and no one on the inside to advise her about the best doctor for her, Valente searched the Internet.

She didn't look forward to someone drilling what is called a "burr hole" in her head, but she knew she had to try something. The pain made life so miserable that the former landlady, who loved cooking for and talking with tenants, had become silent and withdrawn.

Valente had tried other treatments and medications for her condition, which occurs when an enlarged blood vessel in the brain presses on a nerve.

"It's like a poker stabbing you in the head," she says.

The surgery involves cutting out a half-dollar-size piece of skull in an area behind the ear to expose the irritated nerve. A small sponge or piece of gauze is placed between the affected nerve and the blood vessel, then the skull piece and the covering flap of skin are replaced.

Complications from burr holes can include coma, seizure, stroke, infection, brain bleeds, swelling and brain damage that can lead to memory problems, coordination difficulties and speech impairment.

Tally's ratings from those online sites seemed positive, and Valente said she was heartened to see he served on the Board of Governors at Manatee Memorial. He also was a former chief of staff there.

"I didn't see anything in his record of prior counts against him," she said. "If I had, I would have gone right past him and found somebody else."

Had she known of the Florida Board of Medicine's website, she could have checked to see if Tally's license was intact. She would have seen that it was.

There also was no mention of his previous error or the fine he'd paid.

"People really have to dig to find anything on this site," says Lisa McGiffert, director of the Safe Patient Project with the Consumers Union, an advocacy arm of Consumer Reports based in Austin, Texas.

"There certainly needs to be an obvious way to let patients know if a physician is on probation" or has had other incidents in his past, she says.

Tally's rebuke by the medical board in February included one additional penalty: A letter of reprimand was sent to the National Practitioner Data Bank.

Physicians don't like that because it is used by hospitals and insurance companies for hiring and other purposes.

But future patients researching Tally will not see it -- the general public is forbidden to access the data bank for information on a specific physician or hospital, even though it was created by Congress in 1968 with taxpayer funds.

The American Medical Association says it supports keeping the information private.

Valente's attorney, Scott McMillen of Orlando, says the medical board quibbled over whether to issue a letter of concern or one of reprimand. He argues they should have levied a more serious penalty, such as suspending Tally's license.

Unsettled feeling

Valente recalls feeling unsettled even before her surgery began.

She said she arrived in pre-op around 8 a.m. and headed to the operating room a couple of hours later. She says the nursing staff was giggling and listening to music, but Tally was not there.

No one asked her to identify the correct side for the surgery, she says, and hospital documentation supports that. Nor was the correct side of her head marked.

"I kept asking to see Dr. Tally and everyone said he was busy," Valente recalls. "I never saw him before the surgery."

Tally confirmed that to the medical board.

Although the mandatory surgical timeout was documented, marking of the correct side was listed as "not applicable," according to Valente's lawsuit.

Such a timeout occurs in the moments before surgery begins so everyone present can pause to make sure everything is ready and as it should be prior to the operation getting under way.

In reviewing the case, the medical board cast doubt on whether the timeout actually occurred, a recording of the meeting available on the board's website shows, and faulted Tally for failing to take the lead as "the captain of the ship," the person wielding the scalpel.

Although Manatee Memorial would not disclose the steps it has taken to prevent similar problems, Tally outlined a few of the measures to the board. He appeared without hospital records or an attorney at the meeting.

Tally told the board patients now are asked which side of the head is to be operated on, and someone must designate the correct side with a marker. Also, patients are asked in the waiting areas if they have seen their surgeons.

Larger signs in the operating rooms remind staff to ask the patient the same questions.

"Marking was the critical error here," Tally told the board. He also said the nursing staff changed during the time Valente was waiting for surgery.

"You're trying to say it was the marking or the nurses" at fault, says Zachariah on the meeting recording.

"He can blame anyone, he can blame his mother-in-law, but it was preventable."

Moving on

Valente says while the procedure relieved her pain, she was left with a severe lack of balance and a strong sense of vertigo.

"When I got out, I was like a fish out of water, flop flop flop flop!" she says. "I was trembling like a leaf. It was a terrible sensation."

Another physician said Valente now has vestibular nerve damage on both sides, which is inoperable. She did not have that condition before surgery, she says.

Valente is dizzy most of the time now and occasionally nauseated, she says. She uses a walker, rarely drives and is selling her home to move near family in another state because she can no longer live on her own.

"I've fallen many times, and I've broken my ankle," she says.

Valente said at first she felt sorry for Tally, and apologized to him because her surgery caused him embarrassment.

She says Manatee Memorial CEO Kevin DiLallo visited her in the hospital and sent her a large flower arrangement. Tally phoned her frequently to see how she was doing. He also visited her at her home and brought her doughnuts, she says.

She says he told her, "Oh, now we're going to end up in the newspaper."

Valente decided to sue Tally when the Florida Department of Health contacted her as part of an investigation into her wrong-site surgery.

"When I found out he had done it before, I got really mad," Valente says.

Her lawsuit seeks damages in excess of $15,000. The suit also questions whether Florida statutes are unconstitutional in civil cases of malpractice.

In 2004, voters approved the "Three Strikes Amendment" to the Florida Constitution. It said that physicians would lose their licenses as a result of three successful medical malpractice lawsuits or by administrative action taken by the medical board.

A year later, in response to doctors' concerns, legislation was passed with wording that kept most findings of civil malpractice suits from being used against the license.

McMillen, Valente's attorney, says that goes against the purpose of the Three Strikes Amendment because patients wanted to be able to have a say in whether a physician is allowed to keep practicing.

The lawsuit asks for a judgment declaring that the revised Florida statutes are unconstitutional and asks that an award "even in the amount of a single dollar" count against Tally's medical license.

That is important to Valente, who wants others to know what happened to her.

Valente sold off most of her belongs, including her vintage, '60s-era furniture, a couple of weeks ago at an estate sale. After appearing for a deposition last week, she packed her remaining things.

She regrets losing her independence, but looks forward to being near her grandchildren.

"I feel like I've lost my life -- I can't live here anymore," she says, looking around at moving boxes and at a backyard swimming pool that scares her now. She fears she will lose her balance and drown.

"It wasn't my intent to sue right off. I even felt sorry for the poor bastard. But my life was stolen from me. That's not right."

<p>Carole Valente was groggy.</p><p>The North Port resident had just been wheeled into the recovery room at Manatee Memorial Hospital, moments after a neurosurgeon finished putting her skull back together.</p><p>Valente, 67, had trigeminal neuralgia, a pain in the head so excruciating it is nicknamed the "suicide disease" for the despair its patients suffer and their willingness to do anything to ease the agony.</p><p>This surgery was her last and best hope.</p><p>She wanted -- needed -- to float a little longer on the anesthesia that early January afternoon in 2012, but someone was putting something, a form and a pen, into her hands.</p><p>She was supposed to sign.</p><p>"They woke me up. I was in a dark cloud. I'm all drugged up," Valente told the Herald-Tribune. "I signed, and they took me back in."</p><p>According to a court filing, 15 minutes passed from the time anesthesia stopped in the operating room and the time she signed.</p><p>Only when she woke up later, Valente said, did she understand what had happened: Her neurosurgeon had operated on the wrong side of her head.</p><p>That paper she signed authorized him to go back in and try again, this time on the correct side.</p><p>It wasn't her only surprise.</p><p>She would later learn that her neurosurgeon, Philip Tally of Bradenton, had made the same mistake before, on another patient.</p><p>The first time, in 1994, Tally was fined $2,000 by the Florida Board of Medicine, the organization said.</p><p>Last month, Tally faced the board again, and was chastened by members for what he had done to Valente.</p><p>Board chairman Zachariah P. Zachariah called the event "abominable," a recording of the meeting reflected.</p><p>Although Tally could have had his license revoked, been suspended or been placed on probation, the Florida Board of Medicine again fined him, this time $7,500, and ordered him to give a lecture about wrong-site surgeries to other medical professionals.</p><p>That didn't sit well with Valente, a previously chatty and ebullient hairdresser who calls herself "a feisty, 100 percent Italian."</p><p>She resolved to sue him and the hospital, for what he'd done to her and to protect other patients from a similar fate.</p><p>"I'm frightened he's going to do it again," says Valente, who filed suit Jan. 4 in Manatee County Circuit Court. "I don't want it to happen to the next person."</p><p>For decades, patient advocates have criticized Florida's gentle treatment of erring physicians. Incidents that would get a license yanked for good in Alaska or Wyoming earn a fine and a stern "don't do it again" here.</p><p>Public Citizen, an advocacy group, studies medical boards across the country for how severely they punish physicians who make mistakes. Florida consistently ranks in the bottom 10.</p><p>Stabbing pain</p><p>Tally, of Bradenton's Neuro-Spinal Associates, declined to be interviewed for this article. But he does not deny a mistake occurred.</p><p>"As this involved a procedure at the hospital with a team, Vernon DeSear is designated as the spokesperson for all," Tally wrote in an email to the Herald-Tribune.</p><p>DeSear, vice president of Manatee Healthcare System, issued a statement: "Manatee Memorial Hospital is legally prohibited from disclosing any internal peer review investigations or actions pertaining to its medical staff."</p><p>He later added, "The hospital has investigated this matter and taken appropriate measures to guard against an incident such as this happening again."</p><p>Tally continues to have privileges at the hospital.</p><p>Valente says she tried to be an informed patient when planning for her surgery.</p><p>Like many with a diagnosis, no family in town and no one on the inside to advise her about the best doctor for her, Valente searched the Internet.</p><p>She didn't look forward to someone drilling what is called a "burr hole" in her head, but she knew she had to try something. The pain made life so miserable that the former landlady, who loved cooking for and talking with tenants, had become silent and withdrawn.</p><p>Valente had tried other treatments and medications for her condition, which occurs when an enlarged blood vessel in the brain presses on a nerve.</p><p>"It's like a poker stabbing you in the head," she says.</p><p>The surgery involves cutting out a half-dollar-size piece of skull in an area behind the ear to expose the irritated nerve. A small sponge or piece of gauze is placed between the affected nerve and the blood vessel, then the skull piece and the covering flap of skin are replaced.</p><p>Complications from burr holes can include coma, seizure, stroke, infection, brain bleeds, swelling and brain damage that can lead to memory problems, coordination difficulties and speech impairment.</p><p>Tally's ratings from those online sites seemed positive, and Valente said she was heartened to see he served on the Board of Governors at Manatee Memorial. He also was a former chief of staff there.</p><p>"I didn't see anything in his record of prior counts against him," she said. "If I had, I would have gone right past him and found somebody else."</p><p>Had she known of the Florida Board of Medicine's website, she could have checked to see if Tally's license was intact. She would have seen that it was.</p><p>There also was no mention of his previous error or the fine he'd paid.</p><p>"People really have to dig to find anything on this site," says Lisa McGiffert, director of the Safe Patient Project with the Consumers Union, an advocacy arm of Consumer Reports based in Austin, Texas.</p><p>"There certainly needs to be an obvious way to let patients know if a physician is on probation" or has had other incidents in his past, she says.</p><p>Tally's rebuke by the medical board in February included one additional penalty: A letter of reprimand was sent to the National Practitioner Data Bank.</p><p>Physicians don't like that because it is used by hospitals and insurance companies for hiring and other purposes.</p><p>But future patients researching Tally will not see it -- the general public is forbidden to access the data bank for information on a specific physician or hospital, even though it was created by Congress in 1968 with taxpayer funds.</p><p>The American Medical Association says it supports keeping the information private.</p><p>Valente's attorney, Scott McMillen of Orlando, says the medical board quibbled over whether to issue a letter of concern or one of reprimand. He argues they should have levied a more serious penalty, such as suspending Tally's license.</p><p>Unsettled feeling</p><p>Valente recalls feeling unsettled even before her surgery began.</p><p>She said she arrived in pre-op around 8 a.m. and headed to the operating room a couple of hours later. She says the nursing staff was giggling and listening to music, but Tally was not there.</p><p>No one asked her to identify the correct side for the surgery, she says, and hospital documentation supports that. Nor was the correct side of her head marked.</p><p>"I kept asking to see Dr. Tally and everyone said he was busy," Valente recalls. "I never saw him before the surgery."</p><p>Tally confirmed that to the medical board.</p><p>Although the mandatory surgical timeout was documented, marking of the correct side was listed as "not applicable," according to Valente's lawsuit.</p><p>Such a timeout occurs in the moments before surgery begins so everyone present can pause to make sure everything is ready and as it should be prior to the operation getting under way.</p><p>In reviewing the case, the medical board cast doubt on whether the timeout actually occurred, a recording of the meeting available on the board's website shows, and faulted Tally for failing to take the lead as "the captain of the ship," the person wielding the scalpel.</p><p>Although Manatee Memorial would not disclose the steps it has taken to prevent similar problems, Tally outlined a few of the measures to the board. He appeared without hospital records or an attorney at the meeting.</p><p>Tally told the board patients now are asked which side of the head is to be operated on, and someone must designate the correct side with a marker. Also, patients are asked in the waiting areas if they have seen their surgeons.</p><p>Larger signs in the operating rooms remind staff to ask the patient the same questions.</p><p>"Marking was the critical error here," Tally told the board. He also said the nursing staff changed during the time Valente was waiting for surgery.</p><p>"You're trying to say it was the marking or the nurses" at fault, says Zachariah on the meeting recording.</p><p>"He can blame anyone, he can blame his mother-in-law, but it was preventable."</p><p>Moving on</p><p>Valente says while the procedure relieved her pain, she was left with a severe lack of balance and a strong sense of vertigo.</p><p>"When I got out, I was like a fish out of water, flop flop flop flop!" she says. "I was trembling like a leaf. It was a terrible sensation."</p><p>Another physician said Valente now has vestibular nerve damage on both sides, which is inoperable. She did not have that condition before surgery, she says.</p><p>Valente is dizzy most of the time now and occasionally nauseated, she says. She uses a walker, rarely drives and is selling her home to move near family in another state because she can no longer live on her own.</p><p>"I've fallen many times, and I've broken my ankle," she says.</p><p>Valente said at first she felt sorry for Tally, and apologized to him because her surgery caused him embarrassment.</p><p>She says Manatee Memorial CEO Kevin DiLallo visited her in the hospital and sent her a large flower arrangement. Tally phoned her frequently to see how she was doing. He also visited her at her home and brought her doughnuts, she says.</p><p>She says he told her, "Oh, now we're going to end up in the newspaper."</p><p>Valente decided to sue Tally when the Florida Department of Health contacted her as part of an investigation into her wrong-site surgery.</p><p>"When I found out he had done it before, I got really mad," Valente says.</p><p>Her lawsuit seeks damages in excess of $15,000. The suit also questions whether Florida statutes are unconstitutional in civil cases of malpractice.</p><p>In 2004, voters approved the "Three Strikes Amendment" to the Florida Constitution. It said that physicians would lose their licenses as a result of three successful medical malpractice lawsuits or by administrative action taken by the medical board.</p><p>A year later, in response to doctors' concerns, legislation was passed with wording that kept most findings of civil malpractice suits from being used against the license.</p><p>McMillen, Valente's attorney, says that goes against the purpose of the Three Strikes Amendment because patients wanted to be able to have a say in whether a physician is allowed to keep practicing.</p><p>The lawsuit asks for a judgment declaring that the revised Florida statutes are unconstitutional and asks that an award "even in the amount of a single dollar" count against Tally's medical license.</p><p>That is important to Valente, who wants others to know what happened to her.</p><p>Valente sold off most of her belongs, including her vintage, '60s-era furniture, a couple of weeks ago at an estate sale. After appearing for a deposition last week, she packed her remaining things.</p><p>She regrets losing her independence, but looks forward to being near her grandchildren.</p><p>"I feel like I've lost my life -- I can't live here anymore," she says, looking around at moving boxes and at a backyard swimming pool that scares her now. She fears she will lose her balance and drown.</p><p>"It wasn't my intent to sue right off. I even felt sorry for the poor bastard. But my life was stolen from me. That's not right."</p>